A dismissed claim of fraud.

Practice point:  A plaintiff's general allegations that the defendant did not intend to perform on the contract are insufficient to support a cause of action sounding in fraud.

Case in point:  Mephisto Mgt., LLC v. Moon 170 Mercer, Inc., NY Slip Op 04365 (1st Dep't June 1, 2017)

Here is the decision.

Tomorrow's issue:  A common-law indemnification claim.

An allegation of default.

Practice point:  By their service of a motion to dismiss within the time extension granted by the court, defendants did not default.

Case in point:  Oparaji v. Yablon, NY Slip Op 04363 (1st Dep't June 1, 2017)

Here is the decision. 

Tomorrow's issue: A dismissed claim of fraud.

Pleading prior written notice of a sidewalk defect.

Practice point:  The Appellate Division affirmed dismissal where plaintiff alleged that, as she was exiting a bus, she tripped and fell over a pole sign's stump protruding from the sidewalk near the bus stop.  Plaintiff did not plead that the City received prior written notice of the sidewalk defect as required by Administrative Code of City of NY § 7-201(c)(2).

The City received a citizen complaint through 311 less than 15 days before plaintiff's accident, and repaired the condition a few days after the accident. Even if the complaint had been in writing, it could not constitute prior written notice for purposes of the statute, since it was received within the 15-day grace period provided by the statute for the City to make repairs after receiving notice.

Case in point:  Brown v. City of New York, NY Slip Op 04221 (1st Dep't May 30, 2017)

Here is the decision.

Tomorrow's issue:  An allegation of default.
     
 June 6, 1944

Misrepresentations, rescission, and fraudulent inducement.

Practice point:  While mere promissory statements as to what will be done in the future are not actionable, a promise actually was made with a preconceived and undisclosed intention of not performing it constitutes a misrepresentation of a material existing fact upon which an action for rescission may be based.  Such a misrepresentation is collateral to the agreement, and can be the basis of a fraudulent inducement claim.

Case in point:  White v. Davidson, NY Slip Op 04219 (1st Dep.t May 30, 2017)

Here is the decision.

Tomorrow's issue:  Pleading prior written notice of a sidewalk defect.

A valid defense of duress.

Practice point:  The defense is established upon the showing of a wrongful threat precluding the exercise of free will.  The threat of criminal prosecution is enough, as is the threat of deportation.

Case in point:  Yoon Jung Kim v. An, NY Slip Op 04201 (1st Dep't May 25, 2017)

Here is the decision.

Monday's issue:  Misrepresentations, rescission, and fraudulent inducement.

A valid storm-in-progress defense.

Practice point:  A defendant is entitled to the defense where the evidence shows that the icy condition that allegedly forced plaintiff from the shoveled path developed during the snow storm that commenced shortly before the accident occurred.

Case in point:  Santiago v. New York City Hous. Auth., NY Slip Op 04053 (1st Dep't May 18, 2017)

Here is the decision.

Tomorrow's issue:  A valid defense of duress.

A defendant's failure to establish a prima facie case.

Practice:  A defendant cannot establish a prima facie case merely by pointing out gaps in the plaintiff's case.

Case in point:  Barone v. Elizabeth Firehouse, LLC, NY Slip Op 04052 (1st Dep't May 18, 2017)

Here is the decision.

Tomorrow's issue:  A valid storm-in-progress defense.

A contracting party's liability to a third party.

Practice point:  A party who enters into a contract to render services may be said to have assumed a duty of care, and be potentially liable in tort to a third party, where the contracting party launches a force or instrument of harm, such as by negligently creating or exacerbating a dangerous condition.

Case in point:  Brown v. Garda CL Atl., Inc., NY Slip Op 04049 (1st Dep't May 18, 2017)

Here is the decision.

Tomorrow's issue:  A defendant's failure to establish a prima facie case.

Memorial Day.

Memorial Weekend

A misleveled elevator.

Practice point:  An elevator ordinarily does not mislevel in the absence of negligence, and where the misleveling is caused by an instrumentality or agency within the defendants' exclusive control and is not due to any voluntary action on a plaintiff's part, the case will be submitted to the jury on a theory of res ipsa loquitur.

When res ipsa applies, notice of a defect is inferred, and the plaintiff need not offer any evidence of actual or constructive notice. 

Case in point:  Rojas v. New York El. & Elec. Corp., NY Slip Op 04043 (1st Dep't May 18, 2017)

Here is the decision.

Tuesday's issue:  A contracting party's liability to a third party.